from the chilling-effects dept

Let's say right upfront: if you are unaware, Shiva Ayyadurai is currently suing Techdirt for our posts concerning Ayyaduria's claims to have invented email. Ayyadurai's lawyer in this matter is Charles Harder, the lawyer who filed multiple lawsuits against Gawker, and is credited by many with forcing that company into bankruptcy and fire sale.

Now Harder, on behalf of Ayyadurai, has sent a demand letter to try to have social media comments posted in response to the lawsuit against us taken down. We are writing about this -- despite the lawsuit against us -- because we believe it is important and we do not intend to have our own speech chilled. This is also why we believe it is so important to have a federal anti-SLAPP law in place, because the chance to chill speech with threats or actual litigation is not a hypothetical problem. It is very, very real.

Harder's letter is to Diaspora, and it demands that certain posts by Roy Schestowitz be removed (which appears to have happened). Schestowitz is the guy behind the Techrights blog, which frequently covers issues related to things like free v. proprietary software and software patents. Harder's letter to Diaspora claims that Schestowitz's posts are defamatory, violate Diaspora's terms of service, and "constitute harassment and intentional infliction of emotional distress."

Harder's letter makes the questionable claim that Diaspora itself is liable for Schestowitz's statements. There is tremendous caselaw on Section 230 of the CDA holding that a website cannot be held liable for speech made by users, so it's odd that Harder would argue otherwise, stating that the posts "qualify under the law to establish liability against you."

One of the key reasons Section 230 of the CDA exists is to protect the freedom of expression of users, so that websites aren't pressured via legal threats to take down speech over fear of liability. That's why it grants full immunity. It is surprising that an attorney as established as Harder would overlook this. Elsewhere in the letter, he references Massachusetts law as applying, so it's not as though he's suggesting that some other jurisdiction outside the US applies. So, since Section 230 clearly applies, why would Charles Harder tell Diaspora that it is liable for these statements?

Separately, Harder's letter concludes with the following statement:

This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.

We have seen similar statements on legal letters in the past and they have generally been considered meaningless, at best. On the question of confidentiality/authorization for publication, that's not how it works. The recipient of such a letter has no obligation to not disseminate it or to ask for authorization without any prior agreement along those lines. You can't magically declare something confidential and ban anyone from sharing it. Furthermore, this is especially true when dealing with legal threat letters. While many lawyers put such language into these letters to try to scare recipients (and avoid a Streisand Effect over the attempt to silence speech), they serve no purpose other than intimidation.

Separately, claims of copyright in takedown or cease & desist letters, while they do show up occasionally, are also generally considered to be overstatements of the law. First off, there are questions raised about whether or not general cease & desist threat letters have enough creativity to get any kind of copyright, but, more importantly, even if there were copyright on such a letter it would be a clear and obvious fair use case to be able to share them and distribute them publicly, as part of an effort to discuss how one has been threatened with questionable legal arguments.

Either way, we believe that this fits a pattern of using legal threats and litigation to silence criticism of public figures. In an era when speaking truth to power is so important, we believe such actions need to be given attention, and need to be called out. We also think they demonstrate why we need much stronger anti-SLAPP laws, at both the state and federal level to protect people's right to speak out about public issues. If you agree, please call your elected representatives and ask them to support strong anti-SLAPP protections, like those found in the SPEAK FREE Act of 2015.

from the early-excitement-can-lead-to-disillusionment dept

We've been unabashed champions of crowdfunding and platforms like Kickstarter for quite some time now, though we've also tried to temper some of the hype. A little over two years ago, for example, we used the story of the open social network Diaspora as a possible warning for some of the initial excitement about projects. Much of that comes from just knowing what entrepreneurs go through: the initial idea is exciting, but things change over time, and expectations change... and some projects fail. When you're dealing with investors, that's one thing -- they're sort of designed to expect such a thing. But crowdfunding had a different vibe. Because people got so excited in the idea and really (quite literally) bought into it, we worried that as some projects failed, it might lead to a serious backlash.

It may be a coincidence that we highlighted this risk with Diaspora (one of the first Kickstarter projects to go really "big") a couple years ago... but it's possible that our worries are coming true. Last week, I saw a report from Liz Gannes at AllThingsD, which suggested that the Diaspora team was focusing on something completely different, a "collaborative web remixing tool" called Makr.io. The team definitely went through some significant hardships so it's not that surprising that they've shifted gears. Given that story, it's hardly a surprise that they're now officially "handing control of the project over to the community." They claim they'll still be playing an important role, but it seems pretty clear this is an effective withdrawal from the project, which never really caught on the way some people hoped.

And, of course, this isn't just limited to Diaspora. Bloomberg recently had a (well-timed) story highlighting how an awful lot of successful Kickstarter projects, at the very least, don't meet their deadlines to actually make or ship a product. This has turned at least some people off to the service, which (again) is unfortunate.

Of course, these kinds of platforms are only a few years old, and of course they're going to go through growing pains. I hope that, as they continue to grow and find success, at least there's some greater recognition -- and public admission -- of the potential risks involved, so that they don't take people by surprise, and that people understand that as much as they love an idea, execution is the truly hard part. Investing in the idea is great, but there's a risk involved that the end result won't match the snazzy video that the team put together for Kickstarter in the first place.

from the sad dept

PayPal has an unfortunate reputation for arbitrarily shutting down accounts for various organizations, without much rhyme or reason. The latest is that it has frozen the donation account for Diaspora, the heavily hyped up effort to create an open source, distributed Facebook alternative. Diaspora kicked off with a ton of money via Kickstarter, but (as we worried) the project has proven to be more difficult to get off the ground than some expected. It recently sought more donations... only to discover that PayPal froze the account. Whether or not you agree with the project, it seems pretty ridiculous that PayPal just freezes such accounts. We hear stories of this way too frequently for it to be a mere mistake. The world desperately needs more payment processing options, because the ones out there today are woefully limited. Thankfully, there is at least some movement in that arena. We've been hearing a lot about Stripe -- a Silicon Valley payments startup, with funding from some original Paypal folks -- and, it's nice to see that they quickly jumped in to help Diaspora. Still, the more payment solutions out there, the better off we'll be.

from the you've-been-warned dept

Back in June, we wrote about some concerns we had about the amount of money and attention given to the NYU students who wanted to create Diaspora, a distributed Facebook. We had nothing against the project itself -- a distributed Facebook sounds great, even if other, similar projects have failed. If someone can do it right, that would be fantastic. Instead, the worry is that the combination of massive attention and a ton of money so early would (a) set up ridiculously high expectations while (b) limiting the team in adapting to a changing market. It's not clear if the second part is true, but the first part seems to certainly be coming true. When the team recently released it's extremely rough pre-alpha code, suddenly a bunch of security experts and the press pounced on them for having all sorts of security vulnerabilities.

But, uh, that's what you would expect at this stage of the game. It's pre-alpha for a reason, and they released it by saying that it had lots of security flaws. Now, your standard startup could release this kind of code without a huge spotlight shining on them, and it would give them time to work through the issues. But with so much attention on Diaspora, suddenly the press feels the need to point out every little flaw, even at the stage when such flaws are necessary. Hopefully the Diaspora team doesn't get exasperated by this -- because it could also make them either clam up, or start focusing too much on responding to these trumped up worries at this stage of the game.

from the things-to-think-about dept

Let me start out by saying that I'm a huge fan of what Kickstarter has put in place. They've more or less built up a simple and easy to use platform to allow all kinds of creative folks a way to "fan fund" a variety of projects (music, books, software, performance art, movies, etc...) by using a "tiered" support model. If you're not familiar with the site, it lets people setup a project with a funding "goal" and a deadline. Then, they can set up a series of tiers for how people can fund the project, with promises to get back certain things in response to those tiers. This is the model we've spoken about a few times in the past -- such as what Jill Sobule did a couple years ago to fund her album.

While I definitely believe this sort of model can make a lot of sense in certain areas, I don't think it's right for everyone, and it certainly can create some potential problems -- especially if the content creator doesn't live up to expectations. Kickstarter got a lot of publicity back in May when one of its projects, called Diaspora, for a "distributed" social network got covered in the NY Times at the same time as there was a lot of fuss about privacy concerns on Facebook. That resulted in the project -- which had only been seeking $10,000 to let four college kids work on this project over the summer -- raising over $100,000.

Now, many have looked at this as showing off the power of Kickstarter (though, others might argue it really showed off the power of the NY Times). However, Clay Shirky pointed us to a critique of the Diaspora/Kickstarter "success" that points out that it could actually end up being bad for both Kickstarter and Diaspora:

It is kinda alarming as this pressure to deliver something by the end of the summer something so complex is not necessarily going to help them. The open source community have been trying to develop peer to peer web solutions for ages. There are many reasons why we have not seen a strong distributed social web yet. Some of these reasons are technical, other are social, it's not impossible, but also not trivial.

It is not unlikely that Diaspora would fail to deliver on it's promised milestone by the end of the summer. This should not be a big deal for an Open Source project with developers scratching their own itch. But in this case, the Facebook users frustration, Diaspora's media attention and the actual $$$,$$$ make this an itch shared by many many more users and only 4 students are given the scratcher.

To some extent, I also wonder if the research Daniel Pink talks about in Drive can also come into play. By adding more money to the mix, it may actually make it more difficult for the developers to build something as good as they might have otherwise. Now they have so many more expectations and so much more attention that it makes it that much more difficult to live up to expectations, even if they actually can achieve what they initially set out to achieve.

The other thing that might make this tricky is the same point I've made a bunch of times about the difference between ideas and execution. One of the things you quickly learn at a startup is that the initial idea is meaningless. Once you get to work on executing, that idea will change daily (if not more often). You may have a general idea, but reality gets in the way, and you adjust and adjust and adjust. Often, what comes out in the end is entirely different than what you set out to do, but that might not be a problem. It's quite rare for a project to set out towards a specific point and end up at that point.

For most startups, there's flexibility there. As the execution happens, they can shift course along the way. But in a situation like this, where thousands of people have donated with specific expectations, changing course is difficult, if not impossible, even if it turns out to be the most important thing for the project itself. If they do change course along the way, for the good of the project, suddenly people may get upset about a sort of "bait-and-switch." This doesn't mean that I don't like the Kickstarter model in general. But I can see where it could cause trouble in certain situations. For things like an album, where the deliverables are clear and understandable, it can work fine. But for a software development project, it could be a lot more complex, and there can be some serious pitfalls. Combine that with having a project massively overfunded, and it could lead to trouble.